stated, that one of the questions in this cause, was a question relative to a lien claimed by the petitioner, the defendant William Naish Allfond, upon certain canal shares, and deeds, documents and papers in the pleadings mentioned, in respect of certain costs due to, and money advanced by, the petitioner, in the pleadings of the cause also mentioned: that, on the 1st of December 1837, the cause was heard before the Vice Chancellor as a short cause; and the minutes, as settled by counsel, contained the following direction" That it be referred to the Master to inquire whether the said defendant, W. N. Allfond, had any and what lien, and in what manner, and to what amount, for costs or monies advanced by him to the said A. Askew and H. Askew, or for the maintenance and support of the infant plaintiffs, or for payment of interest of any of the mortgages on the said estates or any of them, or the canal shares, admitted to be in his possession, or on any of the deeds, documents or papers now in his possession, relating to the premises in the pleadings mentioned, and sales above directed, or on any monies received by him; but such sales are to be without prejudice to such lien if any." That the said decree was pronounced, and when drawn up by the registrar, it contained, at the end of the decree, the words, "but such inquiries are to be without prejudice to such lien if any." That the word "inquiries" was an error arising from mistake, and the word sales ought to have been inserted in the said decree as passed and entered, in place of the said word "inquiries.'

The petition then stated, that the mistake was discovered by the petitioner, and was pointed out to his solicitors, who communicated with the solicitors for the opposite side; who, after some explanation, acknowledged that there was that mistake in the decree, and promised personally to see the registrar, and to get the decree altered accordingly; that the petitioner's solicitors relying upon this promise, and believing that the mistake had been rectified, afterwards acted upon the decree, as if it had contained the word sales in the place of "inquiries," and carried in a state of facts before the Master, in respect of the petitioner's lien, which, after considerable opposition by the plaintiffs'

solicitors, was allowed; and in such state of facts, it was assumed that the word sales was contained in the said decree, in place of the word "inquiries"; and ever since that time, the decree had been treated as if it had contained the word sales, and that the plaintiffs' solicitors acquiesced therein; that upon the hearing of these causes, on further directions, on the 10th of June 1844, it appeared that the said decree, as passed and entered, had not been altered in respect of the said word "inquiries" so used by mistake for the word sales. That the plaintiffs' solicitors had been obliged, from ill health, to retire from business, and they had, therefore, ceased to be the agents of the plaintiffs; since when, these causes had, on the part of the plaintiffs, been conducted by the present agents in London.

In opposition to the petition, an affidavit was filed by the plaintiffs' present solicitor, who first had the management of these suits, on the 24th of April 1842, in consequence of the inability of the former solicitors, who had previously conducted the suits, to attend to the same; that, subsequently to the said 24th of April, various proceedings and inquiries had taken place in the said causes; but it was never pointed out to the deponent that any error had been committed in the drawing up of the decree, until the causes came on for further directions in June last, when the subject was first called to his attention; that he had since made diligent search through the papers in the office of the former solicitors, to ascertain what had taken place relative to the minutes proposed by the plaintiffs, prior to the original hearing of the cause, and that the deponent found the draft of the proposed minutes as prepared and settled by the counsel for the plaintiffs, which was to the following effect: "Inquiry whether the defendant Allfond has any and what lien, and in what manner, and to what amount, on the canal shares, admitted to be in his possession, or on any of the deeds or documents, now in his possession, and relating to the premises, in the pleadings mentioned; and sales above directed to be without prejudice to such lien if any;" that he also found, amongst the correspondence, a letter from the plaintiffs' former solicitors to the petitioner's solicitors, upon receiving a copy of minutes, as proposed by them, which

was to the following effect: "Your proposed words, if any of the estates have been sold, inquiring by whom the purchase-monies have been received, we do not object to; the proposed alteration as to the lien, we think, had better be omitted, and the passage restored, as it was before; there being infants, the Court will always order an inquiry as to a lien, and your client will not be prejudiced."

Deponent further said, that he had found the counsels' briefs, held at the hearing of the cause, on which was indorsed "Decree according to minutes," but he had not been able to discover any further information respecting the minutes of the decree, or the alteration said to have been agreed upon.

Mr. Bethell and Mr. Campbell, for the defendants, said, this alteration could not be made, for it was an essential alteration in the decree which was originally made seven years ago, and not since objected to. The only errors which were contemplated by the 45th Order of 1828 were merely clerical errors, and not such a mistake as affected the meaning of the parties.

Mr. Batten, for another party in the said interest.

Mr. Stuart and Mr. Hislop Clarke contended, that the Court had power, under the 45th Order of 1828, to make the alteration required; the word "inquiries" had been inserted by mistake for the word sales in the decree: this was well known to all parties at the time; and it was understood that the plaintiffs' solicitors had spoken to the registrar, and had procured the alteration to be made the decree had been acted upon as if the word sales had been originally inserted; and this would have been proved by one of those solicitors, if he had been able to give evidence; it was a mere slip or clerical error, and was precisely such an alteration as the 34th Order contemplated.

The VICE CHANCELLOR.-It appears to me very clear. I do not agree with what has been urged, that the meaning of the Order was to correct clerical errors only. The Order is applied to two sorts of circumstances clerical slips, and errors; it applies to both cases: if that is the fair construction of the Order, just consider how the matter stands. It has been said, that there is nothing to shew how the errors can

be corrected. It appears to me that the minutes of the decree, prepared by the plaintiffs themselves, shew that there has been an error, according to the plaintiffs' own view, so that there is a plain method of setting the decree right. It appears there was a communication between the solicitors, respecting this error; but, though the error in the copy of the minutes was corrected, still the minutes themselves were drawn up in the way stated in the petition; but that shews plainly there was an error: it was afterwards pointed out to the opposing solicitor, who promised to have the decree altered unfortunately, that gentleman is now in such a state of health that he cannot explain what happened at the time. No doubt, his conduct would be fair and honourable; but, probably, he intended to have the mistake corrected, but it slipped his memory. At the same time it was understood by the defendants' solicitors, that the mistake was altered; and things proceeded in the Master's office as if the mistake really had been corrected. Then the Master made his report; and, considering the great length of the proceedings, it is not wonderful that the thing was forgotten, till it came on upon further directions; and the matter remains in the same state now. It appears to me, that, on the substance of the case, it is embraced by the Order. You must put a fair construction on the case; and, under the circumstances, I think it quite right to make the order.

Costs, Taxation of—Variation of OrderStatute 6 & 7 Vict. c. 73.

An order was obtained upon petition, as of course, to tax two bills of costs, one of which was in respect of an indictment for perjury, which was prosecuted at a time when some of the petitioners were infants, but the petitioners submitted in the usual way, by their petition (all being of age), to pay what should be found due to the solicitors in respect of the said bills of costs :-Held, that the petitioners were bound by their submission, and that their proper course was, before the proceeding to tax was completed, to have come to the

This was a petition, presented by Lady Sandys, Maria Mery weather, Montague Turner, Marcus Turner, and Maud Mery weather, calling into question the correctness of the taxation of a bill of costs by the taxing Master.

Mr. Turner deceased, Lady Sandys, and the other persons, petitioners, who were then infants, were plaintiffs in a suit in this court: Messrs. S. & Co. were employed as solicitors therein; and in the course of the proceedings, an indictment was preferred against some defendants, for alleged perjury committed by them in their answers, and in which Messrs. S. & Co. acted as solicitors. The youngest of the infants came of age in June 1843, and they all adopted the suit. In 1844 the plaintiffs changed their solicitors, and Messrs. S. & Co. delivered two bills of costs, one relating to and headed in the suit, and the other to the indictment, and headed "S. & Co."

On the 11th of March 1844, Lady Sandys and the other petitioners presented their petition for an order of course, for the taxation of the bills, alleging "that the petitioners employed the above-named Messrs. S. & Co. as their solicitors in this court;" "That Messrs. S. & Co. on or about the 8th day of March last, delivered to the petitioners their bills of fees and disbursements, which, as the petitioners were advised, contained many unreasonable and extravagant charges. The petitioners submitted to pay what should appear to be due to Messrs. S. & Co. on the taxation of their said bills:" and an order was thereupon made, referring it to the taxing Master of the Court in rotation to tax and settle the said bills, &c. The petitioners' solicitors were not aware when the order was made that no retainer had been given for the prosecution of the indictment.

On attending before the taxing Master, in pursuance of the order, it was insisted, on the part of the petitioners, that the taxing Master had no authority under the order to tax the bill of costs relating to the indictment, inasmuch as the petitioners had never been liable to pay the same, and that all claims against any party in respect thereof were barred by the Statute of Limitations;

objection, and made his report, whereby he found that the costs relating to the indictment had been incurred on the retainer of Mr. Turner, deceased, and with the knowledge of Lady Sandys and Maria Meryweather, but whether or not on their retainer had not been shewn to him; but he further found that the same were not incurred on the retainer of the other petitioners; and that the petitioners Marcus Turner and Maud Meryweather were then infants; and, under the circumstances, he submitted to the opinion and judgment of the Court, whether or not the petitioners were liable to pay the

amount.

The petitioners then presented the present petition, praying "that they might be ordered to pay the first bill of costs only, and that, if necessary for this purpose, the certificate of the Master, and the order of the 12th day of March 1844, and the petition, on which the same were founded, might be varied as the Court should direct."

Mr. G. Turner and Mr. J. V. Prior, in support of the petition, contended, that the present case was like the case of an undertaking to pay a sum of money which had been given by mistake, and that the bill of costs in respect of the indictment ought not to be ordered to be paid by the petitioners. Mr. Kindersley, contrà.

of his wife, the legal estate in the entirety being outstanding in a trustee; upon a bill of foreclosure by the mortgagee, it was held that the wife was entitled to a provision out of the mortgaged premises.

Previously to the second marriage of Mrs. Waite, the testatrix, an undivided moiety of certain leaseholds, to which she was entitled under the will of her first husband (the legal estate in which was outstanding in a trustee), was settled to the separate use of Mrs. Waite for life, and after her decease for such persons as she should by deed or will appoint. Mrs. Waite, by her will, dated in 1824, gave all her said moiety in the said leaseholds to trustees, upon trust, for her then husband, C. Waite, for life, with remainder to her two nieces, Elizabeth Hanson and Mrs. Keating (the defendant), as tenants in common, for their own absolute use and benefit. The testatrix died in March 1825, and the specific bequest of the moiety of the leaseholds was assented to by the executors of her will. On the 21st of November 1833, C. Waite died; and thereupon T. Keating, in right of his wife, became entitled to an equitable estate in an undivided fourth part of the said leaseholds, the legal estate in the entirety being then outstanding in the defendant Robinson. By a deed, dated in November 1835, and made between T. Keating and his wife of the one part, and Wood of the other part, the undivided onefourth part of the leaseholds was assigned to Wood by way of mortgage, for securing the sum of 2,000l. and interest; and by certain mesne assignments the said mortgage security became vested in the plaintiff Hanson. Hanson then filed his bill of foreclosure against Keating and his wife, and Robinson the trustee. Mr. and Mrs. Keating put in a joint answer, by which the wife claimed her equity to a settlement out of the leaseholds; and this was the principal question at the hearing.

Mr. Bigg, for the plaintiff.—This case is perfectly distinct from the case of an assignment by the husband of his wife's chose in action. Where the husband assigns his wife's chattel interest in a term of years, the wife's estate is absolutely gone.

Co. Litt. 351, a, n. 3, 4.

Sir Edward Turner's case, 1 Vern. 7.
Pitt v. Hunt, 1 Ibid. 18.

Jewson v. Moulson, 2 Atk. 417.
Tudor v. Samyne, 2 Vern. 270; s. c.
4 Myl. & Cr. 389, n.
Mitford v. Mitford, 9 Ves. 98.
Purdew v. Jackson, 1 Russ. 51; s. c. 4

Law J. Rep. Chanc. 1.

Donne v. Hart, 2 Russ. & Myl. 360;

s. c. 1 Law J. Rep. (N.s.) Chanc. 57. Lady Elibank v. Montolieu, 5 Ves. 737. Elliott v. Cordell, 5 Mad. 149. Stanton v. Hall, 2 Russ. & Myl. 175; s. c. 9 Law J. Rep. Chanc. 111. Pierce v. Thornely, 2 Sim. 167.

Mr. Romilly and Mr. Chandless, for the wife. It is now settled that there is no distinction in these cases between a particular and a general assignee; both are governed by the same rules.

The Earl of Salisbury v. Newton, 1
Eden, 370.

Macaulay v. Philips, 4 Ves. 19.
Franco v. Franco, Ibid. 530.

Oswell v. Probert, 2 Ves. jun. 680. Wherever the assignee of the husband is obliged to come into equity to get that which was originally the property of the wife, the Court will refuse its assistance, unless upon the terms of securing to the wife a maintenance out of such property. Burdon v. Dean (1) is precisely the present case. Sturgis v. Champneys, 5 Myl. & Cr. 97; s. c. 9 Law J. Rep. (N.s.) Chanc. 10. Ex parte Blagden, 2 Rose, 249. 1 Roper, H. & W. 286.

Mr. Simpkinson and Mr. Piggott, for Robinson, the trustee.

Mr. Tinney and Mr. Collins, for other parties.

Mr. Bigg, in reply.-Sturgis v. Champneys and Burdon v. Dean were cases where the wife was destitute, and the judgment proceeded very much on that ground. The practice amongst conveyancers is universal, to regard the assignment by the husband of his wife's chattel real, as conclusive, both as respects the wife's right by survivorship and her equity to a settlement.

July 4.-WIGRAM, V.C.-The argument for the defendant, Mrs. Keating, was founded upon the well-established and beneficial rule, that he who would have equity must do (1) 2 Ves. jun. 607.

equity; a rule which, properly understood, it is in all cases very satisfactory for me to refer to, and be bound by. But it is a rule which, as it has been used in the argument in this case, takes for granted the question in dispute. It is a rule which, per se, can by no possibility decide what the rights of the defendants are. It only raises the question what equity, if any, a defendant has against a plaintiff in the circumstances of the case to which the rule is sought to be applied. If, for example, a party as plaintiff seeks an account in equity against the defendant, the Court will take the account wholly, and not partially, between the parties; and it therefore requires the plaintiff to do equity, by himself submitting to account, as a price of his obtaining a decree against the defendant, and in order that the subject of the suit may once for all be settled between the parties. It is only, I may observe, to the one matter which is the subject of a given suit that the rule applies-Whitaker v. Hall (2); and unless the Court imposed those terms, it would be impossible for the Court to administer between the parties the only equity it professes to administer, that of taking and finally settling the whole account. So in the case of bills for specific performance, the Court will give the purchaser his conveyance, provided he will fulfil his part of the contract by paying his purchase-money; and so e converso, if the vendor were plaintiff, the Court will secure to the purchaser the subject of the contract. The Court will execute the contract which is the subject of the suit wholly, and not partially. So if a bill be filed by the obligor in an usurious bond, the Court will rescind the entire transaction, and remit both parties to their original positions. It will not relieve the obligor from his liability, leaving him in possession of the fruits of the transaction he complains of; the equity of the Court is to rescind the transaction wholly, and not partially. The result, in my opinion, is, that the Court can never lawfully impose merely arbitrary conditions upon a plaintiff only because he is plaintiff; but can only require him to give the defendant that, which by the law of the court, independently of the position of the party on the record, is the right of the defendant, as against the plaintiff, in that matter which is the subject of (2) 1 Glyn & Jam. 213.

the suit. I do not deny that the Court may rarely, if ever, be called upon to administer some given equity, except as against a plaintiff. But that consideration does not affect the argument. The test to be applied to the question is whether, if circumstances should give to a defendant, in whose favour terms have been imposed upon the plaintiff, an opportunity of enforcing those terms, he could, in that case, as plaintiff, enforce them: whether the cases which have decided that such terms. would be imposed in his favour, if he were defendant, would not be authorities to support his suit; and I entertain no doubt but that they would be so considered — Elibank v.Montolieu, and Sturgis v. Champneys.

It was said that the above opinion, which I intimated during the argument, was opposed to the opinion of Lord Cottenham, in Sturgis v. Champneys. I do not so understand Lord Cottenham, or I should at once defer to his judgment; but I do know that in one of his most elaborate and able judgments, I mean that in Brown v Newall (3), and with equal clearness in Agabeg v. Hartwell, in the House of Lords, he held that a party loses none of his rights by becoming plaintiff in a suit in equity. In the latter case, the plaintiffs sought an account against the members of the house of Fairlie, Bonham & Co. in this country; Fairlie, Bonham & Co. claimed to be creditors upon the plaintiffs, and the Vice Chancellor of England, upon the broad ground that he who would have equity, must do equity, required all the accounts between the parties to be taken. That decree was affirmed by Lord Chancellor Brougham, and, therefore, went to the House of Lords under every circumstance of disadvantage; yet the House of Lords investigated the case with a view to the question whether, upon all the circumstances, the defendants were entitled to have all the accounts blended; and being of opinion that the defendants had no such equity, the decree was reversed.

Sir

The question then is, what are the respective rights of the parties in this case? Edward Turner's case, if it be law, answers the question. It is true, that some Judges have thought the resolutions in that case questionable; but it is equally true that

(3) 2 Myl. & Cr. 558; s. c. 6 Law J. Rep. (N.s.) Chanc. 348.